Schoeneich v. Reed

• Decision Date: 17 February 1880
• Citation: 8 Mo.App. 356
• Parties: HENRY J. SCHOENEICH, Respondent, v. NATHANIEL REED ET AL., Appellants.
• Court: Missouri Court of Appeals

8 Mo.App. 356

HENRY J. SCHOENEICH, Respondent,

v.NATHANIEL REED ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Feb. 17, 1880.

1. An administrator pays at his own risk demands of one class in advance of their proper order, and without an order of court.

2. The mere bequest of personalty to the wife in the will does not exclude her statutory allowance.

3. Where the executrix, the widow, applies certain personalty bequeathed to her by the deceased to the payment of debts due by the estate, that the

executors are credited by such payments in their accounts with the estate does not make them chargeable with the property thus applied, which did not belong to the estate and was not inventoried.

4. Where the executors, in good faith and acting under legal advice, prematurely pay some demands, leaving no funds with which to pay certain taxes, they may be allowed credit for penalties and costs accumulated because of the delay in paying, occasioned by the want of funds.

5. The executors may be allowed amounts paid from time to time, by direction of the court, for the support of the widow and children, though such orders were not entered of record.

6. Where an executor has acted fairly and in good faith, he should not be deprived of his legal commissions.

7. The executors are entitled to an equal division of the commissions, without regard to who attended to the business.

8. A deposition filed, but mislaid and consequently not produced at the trial, cannot be considered by the trial judge having the cause under advisement.

APPEAL from the St. Louis Circuit Court.

Reversed and remanded.

H. C. LACKLAND and BEN. EMMONS, for the appellants: The sums paid out by the executors for the benefit of the estate should have been allowed.-- Harrison v. Mack, 16 Ala. 616; Miles v. Boone, 4 J. J. Marsh. 457; Constant v. Matteson, 22 Ill. 546; Williams v. Smith, 10 R. I. 280; Elleg v. Nagler, 9 Cal. 643. Commissions of trustees.-- Meacham v. Sternes, 9 Paige, 398.

CHARLES DAUDT, B. B. KINGSBURY, and HENRY J. SCHOENEICH, for the respondent: The executors were properly charged with rents on the lands devised.-- Gamble v. Gibson, 59 Mo. 585; Dix v. Morris, 66 Mo. 514. After having elected to take under the will, the widow cannot claim in addition thereto her statutory allowance.-- Pemberton v. Pemberton, 29 Mo. 408; Brant v. Brant, 40 Mo. 266. The executors, having neglected to pay the taxes, should bear the costs and penalties.-- Williams v. Petticrew, 62 Mo. 470. The executors are not entitled to commissions on the whole amount, including the sum for which they are defaulters to the estate.-- Hawkins v. Cunningham, 67 Mo. 415.HAYDEN, J., delivered the opinion of the court.

This is an appeal on a settlement of a trustees' and executors' account. James M. Martien died in the year 1872, leaving an estate consisting of between two and three thousand acres of land, in Callaway and Audrain Counties, and personal property, the estate being considered then to be largely more than sufficient to pay his debts. In June, 1872, the will was admitted to probate, and letters testamentary were granted by the St. Charles Probate Court to Nathaniel Reed and the widow of the testator, the executors named in the will. After specific devises to wife and children, the rest of the estate was given to the persons named as executors, in trust, to raise money to pay debts, to educate younger children, and to improve lands left to them. The executors took charge, and acted under the will until early in 1877, when their letters were revoked by the St. Charles Probate Court, and an order made that the public administrator, the respondent here, take charge of the estate, which he did. On the revocation of their letters, the trustees and executors made settlement and report of their proceedings, and the public administrator filed objections. From the judgment against the executors they appealed to the Circuit Court, where there was a trial anew, and a judgment rendered against them, from which they now appeal. By agreement, exceptions taken by the administrator de bonis non to certain rulings of the court below are here to be considered as if the administrator had filed a separate record of his appeal.

It is first complained, as error, that the court below refused to allow certain credits claimed by the appellants for money paid by them in order to protect the property of the estate from sacrifice under execution and deeds of trust, and to prevent the filing of mechanics' liens. The testator, after the execution of his will, gave, with wife, two deeds of trust on the house and lot in St. Charles, which had been conveyed to the wife and devised to her in lieu of dower, and which she accepted. These deeds of trust represented the testator's debts, and were due at his death. The holders pressed for payment and threatened to foreclose, and to prevent this and make the property available as dower, Reed, the acting executor, made payments of interest and of cost or charges to the holders. The holders of these deeds subsequently proved up their demands, and these were placed in the fifth class. It is claimed by the respondent that the appellants had no right to pay these instalments of interest and these charges without an order of court, and prematurely; that the estate has proved insolvent; and that the position of the appellants involves the payment of some fifth-class claims in full, while others are paid only in part. It is claimed, on the other hand, that the rule as laid down in Dullard v. Hardy, 47 Mo. 403, that the administrator pays at his own risk when he pays fifth-class demands in advance of a proper order, or before knowing how the estate will turn out, has no application. The facts are, indeed, somewhat peculiar. It would seem that the appellants, or rather Reed, who was the managing trustee and executor, paid amounts upon the deeds of trust, in order to prevent the property from going to sale, and the house and lot accepted by the widow as dower from being sacrificed; and it is now claimed that these payments were for the benefit of the creditors, as thus the other real estate was relieved from the claim of the widow for dower. But the will recites that the house and lot in St. Charles had been conveyed to and accepted by the wife in lieu and full discharge of dower. Thus, this property was hers, and was taken by her, so far as appears, subject to the deeds which were upon it when the testator died. It does not appear that she made any claim upon other lands of the testator on account of her dower. It may, indeed, have been her expectation, as it was no doubt the intention of the testator, that the encumbrances on the house and lot in St. Charles, as well as the claims upon...